Plaintiffs
Marvin Washington, Dean Bortell, Alexis Bortell, Jose Belen,
Sebastien Cotte, Jagger Cotte, and the Cannabis Cultural
Association, Inc. ("Plaintiffs") filed this action
on July 24, 2017. Broadly stated, plaintiffs assert an
as-applied constitutional challenge to the Controlled
Substances Act ("CSA"), 21 U.S.C. § 801 et
seq., which classifies marijuana as a Schedule I
drug-the highest level of drug classification. Plaintiffs
attempt to demonstrate the CSA's constitutional infirmity
in a number of ways, but the graveman of the complaint is
that the current scheduling of marijuana violates due process
because it lacks a rational basis.

On
September 8, 2017, plaintiffs moved the Court for an order to
show cause why a temporary restraining order should not
issue. The Court denied plaintiffs' motion that same day,
and issued a summary order confirming that result on
September 11, 2017. See Order Denying a Temporary
Restraining Order, ECF 26. After initially indicating a
willingness to proceed into discovery, the Court reconsidered
and entered a briefing schedule advancing defendants'
motion to dismiss the complaint, see Order, ECF 33,
filed October 13, 2017 under Federal Rules 12(b)(1) and
12(b)(6). The Court held oral argument on February 14, 2018.
For the reasons discussed in this opinion, the
defendants' motion to dismiss the complaint is granted.

Background

In
response to President Nixon's "war on drugs, "
Congress passed the Comprehensive Drug Abuse and Control Act
of 1970. Gonzales v. Raich,545 U.S. 1, 10 (2005).
"Title II of the Act, codified at 21 U.S.C. § 801
et seq., is the Controlled Substances Act
('CSA'), and it 'repealed most of the earlier
antidrug laws in favor of a comprehensive regime to combat
the international and interstate traffic in illicit
drugs."' United States v. Green, 222
F.Supp.3d 267, 271 (W.D.N.Y. 2016) (quoting Raich,
545 U.S. at 7, 12). Congress made a number of findings
associated with the CSA, including that "[t]he illegal
importation, manufacture, distribution, and possession and
improper use of controlled substances have a substantial and
detrimental effect on the health and general welfare of the
American people." 21 U.S.C. § 802(2).

"The
Act covers a large number of substances, each of which is
assigned to one of five schedules; this statutory
classification determines the severity of possible criminal
penalties as well as the type of controls imposed."
United States v. Kiffer,477 F.2d 349, 350 (2d Cir.
1973); see also 21 U.S.C. § 812(a). When the
CSA was enacted, Congress classified marijuana as a Schedule
I drug. "This preliminary classification was based, in
part, on the recommendation of the Assistant Secretary of
[the Department of Health, Education, and Welfare] that
marihuana be retained within schedule I at least until the
completion of certain studies now underway."
Raich, 545 U.S. at 14 (internal quotation marks
omitted). In order to fall within Schedule I, Congress
determined that a drug must have: (1) "a high potential
for abuse, " (2) "no currently accepted medical use
in treatment in the United States, " and (3) "a
lack of accepted safety for use of the drug or other
substance under medical supervision." 21 U.S.C. §
812(b)(1). The chart below describes the CSA's various
schedules and the findings required for each:

Statutory Factors

Examples

Schedule I

High potential for abuse, no currently accepted
medical use in treatment, and a lack of accepted
safety for use of the drug under medical supervision.
See 21 U.S.C. § 812(b)(1).

Heroin, LSD, Marijuana

Schedule II

High potential for abuse, some currently accepted
medical use in treatment, and abuse may lead to
severe psychological or physical dependence. See 21
U.S.C. § 812(b)(2).

Potential for abuse less than substances in Schedules
I and II, some currently accepted medical use in
treatment, and abuse may lead to moderate or low
physical dependence or high psychological dependence.
See 21 U.S.C. § 812(b)(3).

Tylenol with Codeine ®, Ketamine, Anabolic
Steroids

Schedule IV

Potential for abuse less than substances in Schedule
III, some currently accepted medical use in
treatment, and abuse may lead to limited physical or
psychological dependence. See 21 U.S.C. §
812(b)(4).

Alprazolam (Xanax ®), Diazepam (Valium®)

Schedule V

Potential for abuse less than substances in Schedule
IV, some currently accepted medical use in treatment,
and abuse may lead to limited physical or physical
dependence. See 21 U.S.C. § 812(b)(5).

Robitussin AC ®

After
placing marijuana in Schedule I, "Congress established a
process for reclassification, vesting the Attorney General
with the power to reclassify a drug 'on the record after
opportunity for a hearing.'" Green, 222
F.Supp.3d at 271 (quoting 21 U.S.C. § 811(a)). Before
beginning the reclassification process, the Attorney General
must seek a scientific and medical evaluation from the
Secretary of Health and Human Services ("HHS"),
whose findings are binding on the Attorney General.
Id. § 811(b). In the relevant implementing
regulations, the Attorney General has delegated this
reclassification authority to the Drug Enforcement Agency
("DEA"). See 28 C.F.R. § 0.100(b).

The CSA
also provides an avenue for interested parties to petition
the DEA to reclassify drugs, consistent with the medical and
scientific data provided by HHS. See 21 U.S.C.
§ 811 (a) (providing that the Attorney General may
reclassify drugs after an on the record hearing "on the
petition of any interested party"); see also 21
C.F.R. § 1308.43(a). If a petitioner receives an adverse
ruling from the DEA, 21 U.S.C. § 877 provides for
judicial review of the DEA's determination in the D.C.
Circuit, or another appropriate Circuit:

All final determinations, findings, and conclusions of the
Attorney General under this subchapter shall be final and
conclusive decisions of the matters involved, except that any
person aggrieved by a final decision of the Attorney General
may obtain review of the decision in the United States Court
of Appeals for the District of Columbia or for the circuit in
which his principal place of business is located upon
petition filed with the court and delivered to the Attorney
General within thirty days after notice of the decision.
Findings of fact by the Attorney General, if supported by
substantial evidence, shall be conclusive.

"Despite
considerable efforts to reschedule marijuana, it remains a
Schedule I drug." Raich, 545 U.S. at 15.
"As of 2005, the D.C. Circuit Court of Appeals had
reviewed petitions to reschedule marijuana on five separate
occasions over the course of 30 years, [and upheld] the
DEA's determination in each instance."
Green, 222 F.Supp.3d at 272. In 2011, the DEA denied
a rescheduling petition, see Denial of Petition to
Initiate Proceedings to Reschedule Marijuana, 76 Fed. Reg.
40, 552 (July 8, 2011), and the D.C. Circuit upheld the
DEA's determination in Americans for Safe Access v.
Drug Enforcement Administration,706 F.3d 438, 449 (D.C.
Cir. 2013). The DEA denied another rescheduling petition as
recently as 2016. See Denial of Petition to Initiate
Proceedings to Reschedule Marijuana, 81 Fed. Reg. 53, 767
(Aug. 12, 2016).[1]

Discussion

Defendants
filed a motion to dismiss the complaint under Federal Rules
12(b)(1) and (b)(6). In ruling on a motion to dismiss, the
court must accept the factual allegations in the complaint as
true and draw all reasonable inferences in favor of the
nonmoving party. Gregory v. Daly,243 F.3d 687, 691
(2d Cir. 2001), as amended (Apr. 20, 2001). In order
to survive a motion to dismiss, "a complaint must
contain sufficient factual matter, accepted as true, to
'state a claim to relief that is plausible on its
face.'" Ashcroft, 556 U.S. at 678 (quoting
Bell Ail. Corp. v. Twombly,550 U.S. 544, 570
(2007)). "A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged." Id.

A.
Exhaustion and Plaintiffs' Rational Basis Claim

Properly
understood, plaintiffs have raised a collateral challenge to
the administrative decision not to reclassify marijuana. As
such, plaintiffs' claim premised on the factors found in
Section 812 of the CSA is barred because plaintiffs failed to
exhaust their administrative remedies. Even if the Court were
to reach the merit of plaintiffs' rational basis claim, I
hold that plaintiffs have failed to state a claim under Rule
12(b)(6).

The
parties first present a threshold question of statutory
interpretation, the resolution of which illustrates that
plaintiffs' claim is an administrative one, not one
premised on the constitution. Plaintiffs contend that, in
analyzing the rationality of the CSA, Congress should be
bound by the factors set out in 21 U.S.C. § 812(b)(1),
which include a finding that a drug has "no currently
accepted medical use in treatment in the United States."
Alternatively, defendants suggest that the Section 812
factors apply only to reclassification
determinations by the Attorney General, as set forth in 21
U.S.C. § 811(a). Put differently, the question is
whether the statutory factors outlined in Section 812(b)(1)
are imputed into the constitutional analysis, thereby binding
Congress to particular factors in conducting rational basis
review.

A fair
reading of the statute reveals that the factors set out in
Section 812 apply only to the Attorney General's
reclassification proceedings-they do not bind Congress on
rational basis review. As explained above, 21 U.S.C. §
811(a) vests the Attorney General with the authority, through
his or her designated agent, to reclassify particular drugs
if he or she: (1) "finds that such drug or other
substance has a potential for abuse, and, " (2)
"makes with respect to such drug or other substance the
findings prescribed by subsection (b) of section 812 of this
title." And 21 U.S.C. § 812(b) states that
"[t]he findings required for each of the schedules are
as follows, " and thereafter lists the three relevant
factors, including, as relevant here, whether the drug has
any currently accepted medical uses. Read in context with
Section 811(a), it is clear that the factors listed in 21
U.S.C. § 812(b)(1) were intended to apply only to the
executive officials in reclassification proceedings.

More
fundamentally, as a constitutional matter I am persuaded by
the logic of the opinion of Judge Wolford of the Western
District of New York in United States v. Green, who
analyzed this question as follows:

It is difficult to conclude that marijuana is not currently
being used for medical purposes-it is. There would be no
rational basis to conclude otherwise. And if that were the
central question in this case, Defendants' argument would
have merit-but it is not the central question... . The issue
is not whether it was rational for Congress or the DEA to
conclude that there is no currently accepted medical use for
marijuana-that would be the issue if a claim were brought in
a circuit court challenging the DEA's administrative
determination. Rather, the constitutional issue for equal
...

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